The ghosts of the 2000 presidential election will return in 2012.
Photo-finish and error-laden elections recur in each cycle. When the
margin of error exceeds the margin of victory, officials and courts must
decide which, if any, errors to discount or excuse, knowing that the
answer will likely determine the election's winner. Yet despite
widespread agreement on the likelihood of another national meltdown,
neither courts nor scholars have developed consistent principles for
resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying
values of the electoral process. It argues that the resolution of an
election error should turn on its materiality: whether the error is
material to the eligibility of a voter or the determination of her
ballot preference.

In developing this argument, this Article offers the first
trans-substantive review of materiality as a governing principle. It
then introduces the insight that, unlike the evaluation of materiality
in other contexts, the materiality of a voting error may be reassessed
over time. This dynamic assessment of materiality best accommodates the
purposes of a decision rule for election error. Indeed, the insight is
most powerful when the stakes are highest: when an election hangs in the
balance. Finally, this Article discusses the pragmatic application of
the materiality principle, including the invigoration of an
underappreciated federal statute poised to change the way that disputed
elections are resolved, in 2012 and beyond.

RESOLVING ELECTION ERROR

TABLE OF CONTENTS
INTRODUCTION
I. ERRORS IN RECENT ELECTIONS
II. THE NEED FOR A PRINCIPLE TO RESOLVE ERRORS
A. The Democratic Function of an Election
B. Decision Rules for Error
III. THE MATERIALITY PRINCIPLE
A. Materiality in Other Contexts
B. The Meaning of Materiality in the
Election Context
1. Materiality of the Underlying
Regulatory Provision
2. Materiality of the Error Itself
3. The Dynamic Reassessment of Materiality
C. Implications of the Materiality Principle
1. Accommodating a Dynamic Assessment of
Materiality
2. Counting Votes Pursuant to the
Materiality Principle
3. The Value of the Materiality Principle
4. Potential Concerns
a. Opportunistic Behavior
b. Cost
c. Bias
d. Due Process
e. Bush v. Gore
f. Perceived Politicization
IV. SOURCES OF LAW FOR THE MATERIALITY PRINCIPLE
A. The Federal Constitution
B. The Civil Rights Act of 1964
C. State Law
CONCLUSION

INTRODUCTION

Twelve years ago, the U.S. Supreme Court's decision in Bush v.
Gore (1) shocked a nation and catalyzed an academic field. In many ways,
the controversy of 2000 marked the rebirth of the study of election law.
But with all of the ink spilled on the law of democracy in the last
decade, the difficulty at the heart of this catalytic event has been
sorely neglected.

Humans are imperfect. This is no less true in our ability to
execute election instructions than in any other arena. In Florida in
2000, citizens made mistakes, inter alia, in registering to vote,
completing and mailing absentee ballots and requests for those ballots,
and most notoriously, indicating their preferred choices on ballots. (2)
Citizens made similar mistakes elsewhere around the country, in 2000 and
long before. The only meaningful difference is that in Florida the
mistakes happened to be outcome determinative, and spectacularly so.

These mistakes and opportunities for others have not vanished, and
with surprising frequency, they continue to represent the difference
between those who prevail in an election and those who do not. (3) The
fundamental problem of what to do with these mistakes remains curiously
unresolved. Particularly when minor errors--by voters and by election
officials--exceed the margin of victory, courts are placed in the
unenviable position of deciding which, if any, of these errors to
discount or excuse, with the knowledge that their judgment will likely
determine the election's winner.

Courts have had little help in this endeavor thus far. Though
scholars have noted that the aggregation of election errors will likely
cause another national meltdown, (4) the most prominent analytical
frameworks in the field, and particularly the prevailing frame of
rights-based constitutional adjudication, provide little useful guidance
for decision makers charged with averting crisis wrought by the
aggregation of individual mistakes. (5) Authors have examined methods
for determining the extent of election-related error, (6) the design of
institutions to review claims of error, (7) and remedial options to
salvage an election when all hope for directly confronting the error is
lost. (8) But very little scholarship offers a consistent principle or
set of principles for addressing the appropriate legal impact of an
error in the first instance. (9)

Absent such principles, some decision makers have attempted to
intuit whether errors are "large" or "small" in
order to determine whether the associated ballots should be counted.
(10) Others have turned to an assessment of responsibility or fault:
voters are relieved from errors made by others but held to their own
mistakes or deficiencies. (11) Neither approach has faced significant
scholarly scrutiny; on further examination, both prove to be
substantially flawed. (12) In this Article, I suggest a principle better
suited to the purposes of the voting process.

The principle I propose is materiality: particularly, the
materiality of an error to an assessment of the affected
individual's eligibility or ballot preference. Materiality plays a
critical role in contract, in tortious and criminal fraud, in the law of
securities, and in many other legal contexts, separating predicates of
legal consequence from those that the law ignores. (13) Yet I am aware
of no methodical trans-substantive examination of this notoriously
flexible idea. This Article offers such an examination, setting forth a
taxonomy of materiality designed to assist in the identification of the
election errors that should preclude the counting of a ballot.

Moreover, this Article unearths a feature of the concept that
proves pivotal in the election context: the materiality of a voting
error may change. This, too, is a notion mostly overlooked. Little work
in the field of voting rights has addressed the impact of the ability to
assess and reassess determinative rulings at different points in time
within the election cycle. (14) Today, errors in the election process
are generally evaluated at the time they are committed, and the voter is
saddled by that evaluation despite the fact that the error may later
become wholly unimportant. (15) The recognition that materiality may
change over time highlights the inadequacy of the existing approach to
the assessment of error in the election context.

Furthermore, the insight into the dynamic nature of materiality is
most powerful when the stakes are highest. When errors leave the result
of an election in question, there often appears to be a conflict between
two fundamental precepts: the rule of law and majority rule. A proper
appreciation for the changing materiality of an election-related error
can help to resolve this perceived, but ultimately artificial, conflict.
(16)

Finally, I explain how the materiality principle may be implemented
in practice. The most tangible manifestation of the principle currently
exists in a surprisingly underappreciated provision of the landmark
Civil Rights Act of 1964, which prohibits disenfranchisement on the
basis of some errors or omissions that are not material to a
voter's qualifications. (17) Few courts or commentators have
recognized the power of this provision, and none have done so with an
appreciation of the dynamic quality of materiality; indeed, proper
application of the statute might well have yielded different results in
several recent elections, (18) Yet even the Civil Rights Act does not
apply the materiality principle as thoroughly as would be beneficial. I
therefore suggest that states explicitly incorporate the principle into
their own election codes.

The Article proceeds as follows. Part I demonstrates the recurring
nature of the problem with a brief review of notable and often
outcome-determinative errors that have materialized in recent elections.
Part II explores some of the potential decision rules for confronting
these errors. Part III offers the materiality principle that I propose
as superior. Of particular note, I introduce for the first time the
insight that in the voting context, an assessment of materiality may
change over time. Recognizing the dynamic nature of materiality,
moreover, better serves the rationales supporting the election process
than any of the available alternatives for confronting error. Finally,
Part IV describes how the materiality principle may be implemented in
practice, including the first sustained scholarly review of the Civil
Rights Act's materiality provision, a ready vehicle for applying
the concept in many circumstances.

I. ERRORS IN RECENT ELECTIONS

The prospect that the balance of an election might turn on the
resolution of errors did not die with Bush v. Gore. In 2010, the
election for a U.S. Senate seat in Alaska was cast into controversy when
incumbent Senator Lisa Murkowski lost the Republican Party primary and
announced her intention to run as a write-in candidate. (19) In many
states, write-in candidates distribute stickers that their supporters
can affix to a ballot to avoid any potential ambiguity in their choice.
(20) But a few years prior, the Alaska legislature outlawed such
stickers after determining that they would foul the state's new
optical scan readers. (21) Suddenly, in a race polling well within a
comfortable margin of error on the eve of the election, (22) there was a
substantial likelihood that the election result might turn on the
spelling and/or penmanship of Murkowski's supporters. Sure enough,
voters actually cast a healthy number of ballots for
"Murcowski," "Morcowski," and "McCosky,"
with corresponding controversy as to the outcome of the race. (23)

Two years earlier, another U.S. Senate election left at least 4,797
absentee ballots of disputed validity--far more than the 312-vote margin
of victory. (24) These absentee ballots were rejected in the initial
election canvass, and most remained uncounted even after a thorough
recount and vigorously disputed contest proceedings. (25) Officials
rejected many of the absentee ballots because of alleged errors. (26)
Some voters failed to sign absentee ballot materials (27) or signed them
in the wrong place. (28) Others completed their own materials
accurately, but witnesses observing the process submitted flawed
information. (29)

Though the Minnesota race drew the most attention, ample errors
also arose elsewhere. Palm Beach County, Florida--no stranger to
election controversy--also rejected absentee ballots with legitimate
signatures written in the wrong location. (30) Officials in Waller
County, Texas--home to Prairie View A&M College (a
"historically black university") and a history of alleged
voting rights abuses (31)--rejected registration forms with complete
addresses but without ZIP codes. (32) Waller County also rejected
versions of registration forms that were not the most recent forms
produced; (33) some counties in Indiana did the same. (34) Colorado
rejected voter registration forms on which applicants provided the last
four digits of their Social Security number but did not check a box
explaining that they had no driver's license or state
identification number to provide instead. (35) Ohio rejected absentee
ballot applications for citizens who did not check a box indicating
their status as a qualified elector, (36) and rejected some provisional
ballots from voters who signed but did not print their names or who
signed and printed their names in the wrong place on the ballot. (37)

The litany from 2008 is no anomaly. In every single election cycle,
errors occur. Some are major, some are minor; some are novel, some
familiar. And in every single cycle, these errors prove outcome
determinative somewhere. (38) For William Davignon and Michael Carney,
lightning struck twice. In both 2001 and 2003, Davignon beat Carney by
one vote for a county legislative seat; the first time, the election
depended on an absentee ballot signed on the wrong line, and the second
time, a timely ballot with a missing time stamp. (39) To be sure, it is
unusual to see outcome-determinative errors in consecutive races between
the same candidates. But for most election participants, once is more
than enough.

II. THE NEED FOR A PRINCIPLE TO RESOLVE ERRORS

Election errors like those above are the inevitable consequences of
election procedures. These procedures serve a critical purpose: they
help a community arrive at a reliable shared understanding of the
individuals empowered to represent and govern it, which in turn--at
least classically--secures the consent of those governed. (40) Election
procedures regulate who can vote for whom, when, and how, and the means
by which those preferences are acknowledged and tallied to produce a
representative vested with the authority of the state. Some of these
procedures aim to protect the integrity or perceived integrity of the
election against attempts to manipulate the results; others aim to make
the election easier for a bureaucracy with limited resources to
administer. It is not possible to run a reliable election without
pervasive procedural regulations. (41)

Consider, for example, just some of the regulations affecting a
would-be absentee vote in California: officials must prepare a specific
application form, with particular notices and particular requests for
information; (42) the voter must complete the application with specified
information in specified locations on the specified form; (43) the voter
must ensure that the application is received by specified officials
within a designated period; (44) officials must process the application
according to specific criteria; (45) officials must prepare the actual
ballots, with specified notices and instructions; (46) officials must
deliver the appropriate absentee ballot, enclosure envelope, and ballot
pamphlet to the voter at a specified address within a designated period;
(47) the voter must complete the enclosure envelope, with specified
information in specified locations; (48) the voter must complete the
absentee ballot itself; (49) the voter must enclose the absentee ballot
in the proper manner within the enclosure envelope; (50) the voter must
ensure that the ballot and envelope are delivered by specified means to
specified officials within a designated period; (51) officials must
compare information on the envelope with information on other election
records in a specified manner; (52) and officials must transmit the
envelopes to the entity responsible for counting ballots within a
specific time frame. (53) My point is not that these regulations are
undue or onerous, but rather that the regulations are plentiful. (54)
This, in turn, breeds plentiful opportunities for error.

Some departures from the prescribed procedures may be the result of
attempts to manipulate the system--intentional cheating by those who
believe that violating the procedures is more likely to lead to their
desired outcome. Some departures may be the result of misunderstanding
or mistake by voters or officials who are not familiar with each element
of the rules, or who, pressed for time, inaccurately complete a
procedure. Whatever the cause, errors are inevitable. And that leaves
the problem of what to do when they occur.

A. The Democratic Function of an Election

Acknowledging the imperfection of human endeavor, an election
system needs some decision rule to determine the extent to which
deviations from the procedural ideal should be accommodated. Such a rule
should be grounded in the rationales for holding elections as an initial
matter. Thus, before discussing the candidates for a rule resolving
election errors, it is useful to review exactly what it is that we as a
society seek to accomplish through the election process.

First and foremost, the purpose of an election is to allow a
community to approve particular individuals to represent and govern the
community and, when repeated, to ensure that those chosen are responsive
to the community's wishes. In this sense, the point of an election
is to produce an agreed-upon winner or set of winners. An identified
winner, however, does not alone suffice; otherwise, we could toss coins
or roll dice to determine our representatives. (55) Instead, we expect
the winner of an election to accurately represent, as best we can
ascertain, the collective leadership choice of the polity. This, in
turn, requires that an election aggregate the individual preferences of
those who comprise the community. (56)

However, choosing a winner--even choosing the "right"
winner-is not an election's sole purpose. Modern survey science
allows us to poll a comparatively modest representative sample of the
eligible electorate to arrive at a statistically certain victor the vast
majority of the time; instead of holding an election for governor or
senator, we could simply ask several thousand randomly selected electors
on Election Day whom they preferred, and we would quite often be
confident that we could get the statewide answer precisely right. (57)
Yet even with full confidence that it would produce the correct result,
a poll seems an unacceptable substitute for an election. This is because
elections fulfill an additional societal function: they allow each
eligible member of the community to participate in the act of choosing a
representative, and thereby not only foster the strength of the
community as a community, (58) but also secure community members'
consent to be governed. (59) Indeed, as scholars have long recognized,
the expressive and participatory elements of an election explain each
citizen's decision to cast a ballot far better than the remote
possibility that her ballot would change the final instrumental result.
(60)

Elections as we know them also fulfill a third purpose:
cost-efficiency. If we wished to gather the preferences of the eligible
electorate while also ensuring an opportunity for each member of the
electorate to participate, we could send trusted government teams to
canvass the eligible electors one-by-one. The duration and expense of
such an enterprise, with safeguards for accuracy and the prevention of
coercion, would be significant. Elections, while costly, are a
comparatively efficient means to (theoretically) assess the preferences
of the legitimate electorate while (theoretically) permitting
participation by all such electors.

Thus, elections have at least three aims: to accurately select
community representatives by aggregating the preferences of the eligible
community members, to allow participation in that endeavor by as many of
the eligible members of the community as possible, and to accomplish
these two objectives in a cost-efficient manner. When errors occur in
the course of an election, a principle to address those errors should
track the reasons for holding the election in the first instance. It
should, that is, promote the most accurate assessment of eligible
community members' preferences, with the broadest participation by
eligible members of the community, at the least cost.

B. Decision Rules for Error

Unfortunately, the most straightforward decision rules for the
resolution of errors are also the least adequate under these conditions.
At one pole, for example, a decision rule might call for the counting of
every ballot for which it is possible to count a vote, no matter how
egregious the departure from prescribed regulations. Such a rule would
allow substantial cause to question the reliability of the
election's aggregation of preferences--ballots would be counted
when cast by unknown individuals, from unknown addresses, which might or
might not represent the lone votes of eligible members of the community.
Indeed, such a rule would call for the counting of multiple ballots cast
by the same individual or by individuals who acknowledge that they are
not within the contemplated jurisdiction. This is not a principle for
resolving errors that inspires confidence in the election results.

The converse rule is more often proposed, but just as flawed. This
rule permits zero tolerance for error, with no ballot counted upon any
departure from prescribed procedures. Such a leaden emphasis on
formalities would extend not only to errors like a voter's failure
to register or indicate a choice of candidate on the ballot, but also to
voter errors like entering both a given name and surname in the space
designated for one or the other, and to official errors like failing to
initial an absentee ballot or hitting the wrong key in data entry.
Indeed, true zero tolerance suggests that, in the California absentee
ballot described above, (61) the ballot should not be counted if the
election official failed to include a ballot pamphlet in the mailing
packet. (62) Procedural violation, by any actor for any reason, would
lead inevitably and uniformly to default. This sort of hard line fails
for the same reason as its considerably softer counterpart above: it
does not inspire confidence in the election's results. Given the
number of regulations and the number of minor violations of those
regulations that are inevitable in any large-scale election, a true
zero-tolerance rule would exclude too many ballots of eligible electors
to constitute a reliable representation of the community's
aggregate preferences.

The prevailing method in practice is to muddle along under a third
approach, which neither courts nor commentators have recognized as
inadequate. This approach embraces the rough intuition that some errors
should not be "charged" to the voter in counting her ballot.
(63) The states have developed different names for this concept. When
state legislatures create such a rule, they usually do so by statutory
declarations that election regulations are to be construed liberally in
favor of the voter. (64) When the judiciary imposes such a rule in the
absence of legislative guidance, they usually frame the issue in terms
of "substantial compliance" with the election regulation in
question, distinguishing between major and minor errors. (65) Professor
Rick Hasen has identified this approach as the "Democracy
Canon" of construction, in which ambiguous statutes are to be
construed in voter-friendly fashion. (66)

The central critique of such a decision rule is that there is
little to ground the rule beyond the preferences of the decision maker.
"Minor" errors are not self-defining, nor is
"substantial" compliance with a regulation. The words give no
guidance to determine whether failure to notarize an absentee ballot is
a minor error or a major one. The same is true for other errors:
mistakenly writing today's date rather than one's date of
birth on a voter registration form, or transposing two digits of a
twenty-digit driver's license number; casting a ballot at a
pollsite table next to the one representing the precinct to which the
voter is assigned; or missing the deadline to register--or to vote--by a
day, or an hour, or a minute. All are errors. But no principle inherent
in the concepts of "minor" error or "substantial"
compliance indicates when the error in question crosses the line at
which the error is to be regarded as particularly consequential. (67) As
a result, judicial decisions to disregard error, or to refuse to
disregard error, appear dangerously ad hoc. (68)

Moreover, the magnitude of an error is unlikely to be the best
measure of whether that error is significant to the appropriate
resolution of an election. A tiny slip of the finger during data entry,
changing a birth year from 1987 to 1997, makes a twenty-five-year-old
look fifteen--and ineligible to vote. A big mistake, such as leaving the
date of birth entirely blank, yields a similar question about
eligibility. In this context, size really does not matter.

Some jurisdictions and commentators have tacked on a principle for
resolving errors based on the fault of the offender. (69) Errors that
are the voter's "fault" become preclusive; those that are
not are forgiven, when it is possible to do so and still log a vote in
favor of an identified candidate. It should first be noted that such
assessments, when they occur, are fairly rudimentary, with little
analysis of comparative contribution to the error; after all, as with
most wrongs, rarely is one actor the exclusive causal agent. (70) For
example, if the instructions on a form are ambiguous, and a voter
completes that form incorrectly, accurate allocation of fault for the
resulting error will be difficult at best.

Even if it were possible to assign blame clearly and cleanly to
either voter or nonvoter, as I have investigated elsewhere,
"fault" is

Commw. Ct. 2002) (excusing misspellings of a write-in
candidate's name and attempts to write a candidate's name on
the improper ballot line, but refusing to excuse a failure to mark a box
next to the name of a write-in candidate); see also Adkins v. Huckabay,
755 So. 2d 206. 216-18 (La. 2000) (reviewing past Louisiana decisions
that were ostensibly issued under a uniform "substantial
compliance" standard but yielded wildly variant results). at best
an imperfect decision rule for the resolution of most of these errors.
(71) The frame of fault implies that voters should be punished for
errors for which they are primarily responsible, by refusing to count
their ballots. (72) But for the many election errors reflecting mistake
rather than malfeasance, such punishment seems out of place, given the
precepts on which punishment is normally justified.

For example, precluding the counting of a ballot cast by an
eligible elector has little retributive merit. An error in the
completion of a form or in the marking of a ballot delivers little
psychic damage to the body politic; there is correspondingly little
retributive value in punishing voters for mistakes they did not intend
to commit. Mistakes in complying with election regulation seem an unduly
slight target for social vengeance. (73)

A more serious argument may be premised on use of "fault"
as a means to avoid externalization of the cost of a wrong. Election
officials presumably rely on voter compliance with election regulations
in order to develop efficient protocols of their own. When a voter errs,
officials' attempts to compensate for that error may incur
administrative costs; punishing that error by refusing to count the
associated ballot may be a means to avoid the extra cost. Indeed, it may
even be a sufficiently stark punishment to deter voter carelessness in
general.

That said, the deterrent value of a "fault"-based
approach to election error can be easily overstated. The morass of
election rules breeds many opportunities for missteps. Before deciding
to pay more attention to any specific regulation, a voter must be able
to adequately assess her own capacity for error with respect to the
procedure in question. It is far from clear that voters are that
self-aware. Furthermore, in the event that an error does occur, the
feedback mechanism in most jurisdictions is not sufficiently developed
to communicate to the errant voter--or voters generally--when the
mistake occurred. Many voters casting provisional or absentee ballots do
not know whether those ballots are counted; those who are informed that
their ballots have been rejected are rarely told the underlying cause
with any specificity. (74) If voters do not understand the circumstances
in which errors are likely to occur, it will be difficult to deter
mistakes, no matter how stark the punishment.

Without the systemic impact of an effective deterrent, it is not
clear that the use of "fault" as a premise for determining the
consequence of error actually avoids substantial cost. Once an error has
occurred, if that error is to be disregarded only if the voter is not
primarily at fault, some procedure is needed to ascertain the proper
allocation of blame. Such a fact-finding procedure will inevitably
entail incremental cost.

For example, consider a photo-finish election in which hundreds or
thousands of provisional ballots have been cast. (75) Somewhere along
the way, errors led to these provisional ballots: perhaps a voter
registered improperly, or perhaps an official improperly processed an
accurate registration form; perhaps a voter arrived at the wrong
precinct, or perhaps an official failed to locate the voter in the
correct pollbook; perhaps a voter failed to respond adequately to a
legitimate challenge of her qualifications, or perhaps her
qualifications were improperly challenged. The source of the error is
rarely immediately apparent. In order to determine which ballots may be
counted in a fault-based regime, records and recollections will have to
be reviewed in order to properly apportion fault. This review is not
cost-free. (76) And even if impeccably conducted, it still leads to the
discarding of a substantial number of ballots cast by voters who are
actually eligible to vote, who submitted their materials in timely
fashion, and who will not understand how to avoid the same problems--or
new ones--in subsequent elections. This Article suggests that those
resources might be better spent.

When election errors inevitably occur, rather than focusing on the
magnitude of the error or the blameworthiness of the perpetrator, I
suggest a different guidestar: materiality. In some respects, this is a
simple, almost tautological, proposition: an election error should only
matter if it makes a difference in achieving an election's primary
purposes. Yet this is not the principle currently driving the resolution
of most election errors. The discussion below represents the first
extended discussion of materiality in the election context. As it shows,
materiality is a principle better suited to resolving inevitable errors
than the available alternatives. Indeed, given the opportunity to
reevaluate materiality as an election progresses, the concept may have
even more utility in the election context than in other legal arenas.

III. THE MATERIALITY PRINCIPLE

A. Materiality in Other Contexts

"Materiality" can be a protean concept. But in developing
an operational understanding of materiality as applied to election
errors, it is not necessary to start from scratch. The concept has been
developed as an important principle in many areas, including the law of
contract, (77) tortious (78) and criminal fraud, (79) securities
transactions, (80) prosecutorial conduct, (81) legal ethics, (82)
employment discrimination, (83) and civil procedure. (84) It is possible
to distill from examinations of materiality in these other contexts a
few common principles--an exercise that I believe to be the first
attempt of its kind. Together, these principles can provide guidance for
our voting inquiry.

First, materiality is used as a gauge for the legal significance of
an action or piece of information, often a mistake or misdeed. If the
action or information is material, certain legal consequences follow; if
not, the legal consequences are different. Materiality is thus a toggle
switch rather than a spectrum: the question is not whether the item
considered is more material or less material, but instead whether it has
reached a threshold level of significance, at which point a categorical
change in the legal nature of the action or information is triggered.

Second, materiality has a referent. An action or piece of
information evaluated for materiality is material or immaterial to a
particular decision, such as a decision to make a purchase, (85) perform
a service, (86) or deliver a verdict. (87) As such, materiality cannot
be evaluated in the abstract; that which is material for some decisions
may be wholly immaterial for others. Courts and scholars agree that this
renders the materiality threshold heavily context- and fact-dependent.
(88)

Third, materiality has an object: a particular fact, a particular
statement, a particular action, or a particular change. It is important
to keep the discussion of materiality anchored to the particular act or
item for which materiality is at issue. In the contractual context, for
example, the obligations of a contract between merchants will turn upon
whether there has been a material alteration to an offer: that is,
whether an alteration that has not expressly been accepted creates a
legally recognized change to the offer as a whole. (89) This requires
two analyses: whether the term being altered is a material term, and
whether the nature of the alteration to that term is material. (90)
Neither an insignificant change to an otherwise material term, nor a
significant change to an immaterial term, will materially alter the
offer as a whole.

Fourth, that which is material has probative weight and consequence
for the decision in question, beyond mere relevance. Exactly how much
consequence the material element must have is a particularly thorny
question, and there is little transsubstantive scholarship examining the
nature of the significance that an action or piece of information must
have before it becomes material. Yet a review of the various substantive
silos above indicates a rough consensus. That which is material is not
merely pertinent to a decision, but has the realistic potential to
influence or affect--that is, change (91)--the decision at issue. (92)
It is not necessary to establish "but for" causation to
establish materiality; no legal doctrine requires proof that a
reasonable decision maker would select a different course absent the
action or information to be evaluated for materiality. (93) It is
necessary, however, to find at least a substantial question as to
whether the reasonable decision maker would do so. (94)

Thus, a disputed fact is material for purposes of summary judgment
only if the fact in question "might affect the outcome of the
suit." (95) In securities law, information is material, and
therefore subject to accurate and public disclosure, "if there is a
substantial likelihood that a reasonable shareholder would consider it
important in deciding how to vote," or that a "reasonable
investor" would consider it important in making an investment
decision (96)--that is, that the information would "have a
significant propensity to affect the voting [or investment]
process." (97) A false statement to a government official is
material if it has "a natural tendency to influence, or [is]
capable of influencing, the decision of the decisionmaking body to which
it [is] addressed." (98) Evidence relating to a defendant's
guilt or punishment is constitutionally material when "there is a
reasonable probability that, had the evidence been disclosed, the result
of the proceeding would have been different." (99) In each of these
areas, and others, materiality distinguishes actions or information that
reasonably call a given decision into substantial question from those
that do not.

Finally, and central to this Article, there have been a few
fleeting discussions acknowledging that the materiality of an action or
piece of information can change over time. In these other disciplines,
actions or pieces of information that are initially immaterial may
become material at some later point, based on their aggregate
significance or a changed context. For example, in evaluating legal
malpractice, a mistake may appear at first to be immaterial, with
negligible impact on the client; if contextual factors change, however,
the consequences may develop such that the initial error later becomes
material. (100) Similarly, a financial misstatement that is immaterial
on its own may become material when aggregated with other misstatements.
(101) In the voting context, as described more fully in Part III.B.3,
the significance of this facet of materiality operates in the opposite
direction: errors that once were material may become immaterial at a
later point.

B. The Meaning of Materiality in the Election Context

The principles above are helpful in distilling a sophisticated
understanding of materiality. This Section applies the above taxonomy to
election-related errors.

The translation of the first principle above is straightforward:
materiality becomes a toggle switch for determining when an error should
prevent the counting of an otherwise valid vote. If an error is
material, the associated ballot should not be counted. If, instead, an
error is immaterial, it should not cause disenfranchisement.

The second principle above is also relatively straightforward to
apply in the election arena. Facts or objects are material to particular
decisions. In the election context, as discussed above, the primary
purpose of the enterprise is to discern the political preference of
eligible members of the political community. (102) The materiality
inquiry takes its lead from the same mandate, with two potential
referents. First, error generally should be evaluated to determine
whether it is material to ensuring that a ballot is cast by an elector
who is eligible; second, error on a ballot itself should be evaluated to
determine whether it is material to determining the preference of the
elector.

The third principle counsels attention to the particular object of
the materiality inquiry. The superficial answer, evident from the
discussion above, is that the materiality of an error should be the
touchstone. But as in contract law, this is usefully separated into two
analyses: whether the underlying regulatory provision that has been
violated is material, and whether the error or omission itself is
material. (103) Neither an insignificant error in an otherwise material
regulation nor a significant error in an immaterial regulation should
become a material error in the determination of disenfranchisement.

1. Materiality of the Underlying Regulatory Provision

In identifying whether an error is material to determining a
would-be voter's eligibility or political preference, the first
inquiry is therefore to assess whether the underlying regulatory request
or command is material to determining the voter's eligibility or
electoral preference. If the underlying regulation is immaterial, then a
flaw in that information must also be immaterial, no matter how
substantial the flaw.

In some cases, this inquiry is trivial. For example, if the
underlying regulation is irrelevant to determining the voter's
qualifications, it cannot be material in that inquiry. Consider a voter
who refuses to provide her race on a voter registration form. (104) The
voter's race --the underlying information sought--is irrelevant to
her qualifications to vote. A fortiori, the underlying information must
be immaterial to an eligibility inquiry. And afortiori, any perceived
flaw in the voter's answer to that immaterial question must itself
be immaterial.

In other circumstances, the underlying information will be relevant
to a final decision but not necessarily material. A piece of information
is relevant if it has even an iota of use in determining a voter's
qualifications or deciphering the voter's intended candidate. (105)
A voter's telephone number, for example, may be relevant to the
determination of her eligibility because it allows an election official
to contact the voter directly to ask probative questions; moreover, the
number's area code and exchange may increase or decrease the chance
that a voter lives in the appropriate district.

However, though a voter's telephone number may be relevant to
determining her qualifications, it is not, on its own, material to that
determination. As discussed in the fourth principle above, materiality
demands more significance. (106) That which is material influences a
reasonable decision maker's decision. It need not alone be outcome
determinative, but it must have at least enough probative weight to
create substantial doubt or uncertainty about the outcome. If the other
information on a registration form indicated eligibility, a flaw in a
telephone number would not cause a reasonable registrar to substantially
question whether the voter in question was eligible to vote.

2. Materiality of the Error Itself

Thus, in applying the materiality principle developed in this
Article, decision makers faced with flawed performance in the execution
of an election requirement must first determine whether the underlying
regulatory objective is material. At this point, however, the analysis
is at most halfway complete. There remains the materiality of the error
itself. That is, one must determine whether the error in question raises
a substantial question for a reasonable decision maker about the
voter's eligibility or ballot choice.

Several types of errors may be presumptively immaterial. For
example, an error may exist in the form of the information conveyed,
even when the substance of the information conveyed is clear and
unambiguous. Consider a voter registration form requiring the
voter's date of birth, XX]XX]XXXX. The regulation exists to extract
the voter's age, which is unquestionably material: a voter's
age is a substantive element of qualification to vote in every state in
the country. Yet the materiality of the underlying information does not
automatically render material any flaw in the expression of that
information. Writing "November" instead of "11" as
the month of birth, even when "11" is clearly called for, is
not an error that is material to determining whether the voter is of
lawful voting age. As such, it should not serve as an error that enables
disenfranchisement.

More controversially, and more contrary to current practice, the
same principle applies if a voter marks a candidate's circle on a
ballot with an unambiguous check mark when the regulation calls for the
voter to fill in the circle, or if a voter both fills in a
candidate's circle and unlawfully writes the same candidate's
name in the space for a write-in choice. There are certainly
circumstances when the improper form of information may in fact create
doubt about the substance it intends to convey; for example, if
instructions require checking an adjacent box to vote for a candidate,
marking an "X" over Candidate Smith's name may not
indicate whether the voter intended to vote for Smith or convey her
displeasure with Smith. That error would be material. But when the
information's form alone is at error, and that flaw does not create
substantial doubt or uncertainty about the qualifications of the
affected voter or her intended preference, the flaw is immaterial.

An error may also be immaterial if information material to a
voter's qualifications or preference does not appear in a
particular designated location, even though the information is
unambiguously provided elsewhere to the same regulatory actor. For
example, a voter who presents the last four digits of her Social
Security number in the voter registration form's box designated for
her birthdate and presents her birthdate in the Social Security number
box has erred --twice. But as long as the information conveyed is
unambiguous, neither error casts her eligibility in doubt. Both should
therefore be regarded as immaterial.

These are not the only types of immaterial errors. Consider the
electors whom Waller County refused to register in 2008 because they
failed to provide ZIP codes on their registration forms. (107) As long
as the voter provides a street address and city indicating that she
lives in a particular location, the lack of a ZIP code does not cast
into doubt her qualifications to vote for the candidates running for
office in her precinct. No reasonable decision maker would believe that
error alone to be material to eligibility.

The ZIP code example above reflects that in election law, as
elsewhere, materiality must be evaluated in the context of other
information available to the decision maker, (108) Indeed, this
principle is not limited to the information on a given form. I suggest
that the materiality of a flaw can and should rely on other reliable
contextual information readily available to election officials. Such an
approach contributes to ensuring that voting regulations focus on
substantive qualifications and actual voter intent, rather than
procedural hiccups. Consider a seventy-five-year-old elector, physically
appearing before an official, with no doubt about her identity. If she
mistakenly offers the current date instead of her birthday on a voter
registration form, her form will contain a substantial error. The
unambiguous visual evidence, however, renders that error immaterial in
assessing her qualifications. Reliable evidence that a flaw is
immaterial can come from sources other than the immediate vicinity of
the flaw itself.

The question of the extent to which context may be considered, of
course, is different from the question of a duty to seek that
information out. Recognizing that information available to election
officials beyond the four corners of a form may render a flaw on that
form immaterial does not itself imply the existence of an affirmative
duty to seek or elicit the curative information in question. Such a duty
might well involve substantial incremental cost and is not necessary to
the argument advanced here. My argument on the contextual nature of
materiality demands only that when curative information has been
presented, an official may not ignore the information that resolves a
pending question simply by asserting that her evaluation of materiality
is confined to the source of the error itself.

3. The Dynamic Reassessment of Materiality

That realization, in turn, leads to the insight at the heart of
this Article: a determination about the materiality of an election error
can and should rely on information that becomes available to government
actors at different points in time. Thus far, this Article has addressed
only errors for which materiality is a known quantity at the time the
error is committed. Even with this limitation of the principle,
materiality would still be a superior basis for resolving election
errors than the available alternatives--more votes would be counted when
the eligibility of the elector and her intended candidates were not in
doubt, with limited incremental cost for the decision maker. But the
materiality principle begins to bear far more serious fruit with the
insight that it is dynamic.

The evaluation of the materiality of an election error--at least
with respect to a voter's qualifications--should not be confined to
the initial appearance of the error in question. At the moment the error
is first evaluated, it is material if it creates real and reasonable
doubt as to whether the individual in question is qualified. But that
which is immaterial at time t--say, a voter's omission of his
apartment number on his registration form, which does not create any
doubt about his residency in a particular precinct--may become material
at time t + 1, if there later arises reliable evidence calling into
question whether he lives in his apartment building at all. (109)
Conversely, that which is material at time t--say, a voter's
failure to affirm his citizenship on his registration form--may become
immaterial at time t + 1 if it later becomes clear that the voter is a
citizen. At the time when there is no longer a doubt about the
individual's qualifications, the earlier error becomes immaterial.
In this Article, I suggest that the original error should therefore not
provide cause to deprive the individual newly known to be eligible of
her valid vote.

Some applications of this concept, though not identified as such,
are readily observable in current practice. The easiest such example is
an election official's discovery of a mistake, If a data entry
clerk hits an errant key while typing a registrant's personal
information into a computerized registration system, that keystroke
becomes an error in the individual's record. That error may lead to
legitimate questions about, for instance, the individual's true
identity. The instant that the error is discovered as such, however, it
becomes instantly immaterial, because the individual's
qualifications are no longer in doubt. The same is true if the error was
caused by the applicant instead of an election official; once the error
is discovered as an error, and reliable and accurate information is
provided instead, the original flaw is no longer material to determining
the voter's qualifications.

The example above depends on the direct correction of flawed
information. Errors may also be rendered immaterial by new information
resolving eligibility questions raised by an original flaw.

Such an example can also be found in current practice, though it is
a bit more difficult to spot. The Help America Vote Act of 2002 (HAVA)
was a wide-ranging piece of federal legislation. (110) One of its
provisions requires voters with a current and valid driver's
license to provide that license number on their voter registration form,
and requires other voters to provide the last four digits of their
Social Security number if they have one. (111) That number, and the
voter's name and date of birth, are compared to motor vehicle or
Social Security records. (112) For certain voters--those who are
registering by mail and have not yet voted in the state--the comparison
becomes part of an identity verification requirement: either the
information must match, or the voter must show one of several enumerated
forms of documentary identification, before the voter may vote a regular
ballot. (113)

In this Article's parlance, the HAVA provision establishes a
regime to test voter qualifications in a manner acknowledging that the
materiality of a piece of information may vary over time. HAVA requires
states to test the identity of new voters registering by mail. (114) It
establishes one means to do so by demanding that states ask for
information--the driver's license number or Social Security
digits--used to probe such applicants' identities. If the
information on the registration form matches information held in the
records of government databases, the applicant's identity is
confirmed. (115) However, if an error on the registration form or in a
corresponding government database record causes a mismatch, the
individual's identity could be called into question.

At that moment, time t, with the error in the record undiscovered,
the mismatch is certainly relevant, and perhaps material, (116) to
determining the voter's qualifications. Yet HAVA does not
contemplate rejecting outright registration forms with a mismatch.
Instead, it allows mismatched voters to show a piece of documentary
identification, at time t + 1, up to and including at the polls. (117)
Once the voter provides her documentary identification, her identity is
no longer in doubt. And because the original error in the mismatch,
whatever its source, has become immaterial to determining her
qualifications, it no longer interferes with the vote: the voter may
vote a regular ballot, like all other eligible and registered electors.

Although both of the examples above are drawn from existing
practice, the dynamic nature of the materiality decision has never
before been articulated as such in the election context. Indeed, present
standard operating procedure is to assess election errors only when they
occur, ignoring the potential to reassess with more complete
information. For example, once an error has occurred in voter
registration, or in the absentee balloting process, that error in
practice normally proves determinative for the entire election cycle.

This is a lost opportunity. Indeed, the case for the dynamic
assessment of materiality is substantially stronger in the election
context than in most other legal arenas. In these other environments,
the materiality inquiry usually involves a retroactive counterfactual: a
hypothetical ex post look at whether a decision maker might have acted
differently had a prior action or piece of information been different.
(118) The materiality of misinformation in, or information omitted from,
a securities disclosure, for example, is often gauged after financial
damage has been done; the question is whether different disclosure might
have caused an investor or potential investor to act differently. (119)
Similarly, the materiality of other wrongful disclosures or failures to
disclose--false statements, prosecutorial evidence, tortious
misrepresentations--usually depends on a retroactive counterfactual.
(120) Because the relevant decision point has already passed, the
utility in allowing materiality

to change over time in these circumstances is confined to gauging the
magnitude of remedial and/or retributive liability.121

This is not so in the election context, in which an initial
evaluation of materiality usually occurs before the ultimate decision
point. The decision impacted by the materiality of an error on most
required election records is a decision about the eligibility of a
would-be voter. The ultimate decision on that issue can usually be
either deferred or repeatedly reevaluated, until the vote is certified.

Consider an error on a voter registration form. When the form is
submitted, the election official must assess whether that error is
material: given the form as submitted, he must ask whether a reasonable
decision maker would have a significant question about the would-be
voter's substantive qualifications. For some errors, the answer
will be yes; for others, it will be no.

In an election cycle, these need not be the final answers. There
will be multiple opportunities to reassess the materiality of that error
in context, as other information comes to officials' attention.
Perhaps the voter later contacts a registrar with additional curative
information. Perhaps the error is uncorrected until Election Day, when
the voter is able to submit a segregated provisional ballot with
additional curative information. Or perhaps she is summoned before a
court overseeing a postelection proceeding. All of these represent
opportunities to collect additional information and to reassess the
materiality of the registration form's original error. Only the
fact that the materiality of the error may change over time gives full
effect to these multiple decision points. The dynamic reassessment of
materiality converts the inquiry from a focus on the accuracy of the
election official's initial assessment and consequent assignment of
fault, to a focus on the substantive qualifications of the individual in
question. As discussed below, this latter focus better serves the values
of the voting process as a whole.

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